Personal Restraint Petition Of Gary Daniel Meredith ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
March 5, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint Petition of: No. 46671-6-II
GARY DANIEL MEREDITH
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Gary Meredith filed this personal restraint petition (PRP) for relief from
his convictions for rape of a child in the second degree and communicating with a minor for
immoral purposes.
Meredith asserts that his restraint is unlawful because (1) the trial court erroneously denied
his for cause challenge of a juror, (2) the trial court erroneously admitted his prior convictions, (3)
the limiting instruction on the prior convictions was insufficient, (4) the trial court erroneously
denied his motion to sever the counts, (5) his offender score was erroneously calculated, (6) the
State engaged in prosecutorial misconduct, (7) he received ineffective assistance of trial and
appellate counsel, and (8) the trial court’s errors amounted to cumulative error. In the alternative,
Meredith petitions us for an evidentiary hearing. We deny Meredith’s PRP and his request for an
evidentiary hearing.
46671-6-II
FACTS
I. FACTUAL BACKGROUND1
In 1996, the State charged Meredith with rape of a child in the second degree and
communication with a minor for immoral purposes. BL (age 12) was the victim of the rape charge,
and AB (age 13) was the victim of the communication charge.
A jury convicted Meredith of both counts. Meredith then absconded and did not appear
for his scheduled sentencing hearing in July 1996. The court issued a bench warrant for Meredith’s
arrest. Twelve years later, Meredith was arrested and extradited to Washington. In November
2008, the trial court entered judgment and imposed a 198-month sentence.
II. PRETRIAL MOTIONS AND VOIR DIRE
Both parties made several pretrial motions. The State moved to admit Meredith’s prior
convictions for rape in the third degree and assault in the third degree with sexual motivation. The
State argued the convictions were admissible both as an element of communicating with a minor
and under ER 404(b). Meredith argued that his prior convictions were admissible only for
sentencing purposes and were inadmissible under ER 404(b). The trial court granted the State’s
motion, ruling that the prior convictions were admissible under both of the State’s theories. The
court ruled the evidence could be used to prove absence of mistake or identity, preparation, and
motive.
1
A summary of facts can be found in the published and unpublished portion of Meredith’s appeal.
State v. Meredith, 165 Wn. App. 704, 707, 259 P.3d 324 (2011) (published in part); see also State
v. Meredith, 178 Wn.2d 180, 182, 306 P.3d 942 (2013), abrogated by City of Seattle v. Erickson,
188 Wn.2d 721, 398 P.3d 1124 (2017).
2
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Meredith moved to sever the counts based on the court’s earlier ruling to admit his prior
convictions. He argued that the prior convictions had nothing to do with the rape of a child count.
After hearing arguments, the court denied the motion, but allowed additional briefing by Meredith
on his motion to reconsider. After the court reviewed the additional briefing, it again denied the
severance motion. Based on this ruling, Meredith asked for a limiting instruction.
After the parties’ pretrial motions, voir dire occurred over a period of three days. Both
parties requested that the court seat 12 jurors and two alternates. The trial court stated that its usual
practice was to seat 14 jurors and, prior to deliberations, draw two alternates randomly from the
entire panel.
During voir dire, juror 32 expressed uncertainty about his ability to be impartial because
Meredith had prior sex convictions. When asked by Meredith whether juror 32 would want himself
to be a juror on this case if he was sitting where Meredith was, he stated, “No, I don’t think so.”
Report of Proceedings (RP) (voir dire, May 6, 1996) at 237. Meredith challenged juror 32 for
cause.
The State asked juror 32 whether, despite the life experiences he brought to court, he would
commit to following the court’s instructions on the law, including instructions on how to consider
the prior convictions. Juror 32 answered: It would be “[p]retty hard . . . to follow the Court’s
instructions,” but that he “would strive to” do so. RP (voir dire, May 6, 1996) at 237. The State
also asked whether he would judge the case solely on the evidence, knowing that he would hear
about the prior convictions. Juror 32 replied:
That’s something I would have to think about, go through all the evidence, which
way to go. But one thing that I don’t like about it is why do we have to have all
this stuff, there is no reason for it.
....
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. . . [A]gain, I would have to deliberate after all the evidence has come in, and when
we get to the jury room, see if he is telling the real truth.
RP (voir dire, May 6, 1996) at 237-38.
The State again asked juror 32 if he would follow the court’s instructions, listen to the
testimony, and judge the case solely on the evidence, even if the evidence bothered him. Juror 32
responded, “Yes.” RP (voir dire, May 6, 1996) at 238. Meredith then asked juror 32 if he might
find himself judging the case solely based on the prior convictions. Juror 32 answered, “It’s quite
possible that after the evidence came in, maybe it could be changed to where I could come and be
impartial.” RP (May 6, 1996) at 239. Meredith clarified and asked if he was already leaning
toward a decision, to which juror 32 replied, “Yes.” RP (voir dire, May 6, 1996) at 239.
The State objected to Meredith’s challenge for cause, and the court denied Meredith’s
challenge. Juror 32 sat as a juror during the trial; however, because of illness, the court excused
him prior to deliberations. Neither party objected.
III. TESTIMONY OF RUSSELL AND SIPES
On the night of BL’s rape, Dr. Bobbi Sipes and nurse Michelle Russell conducted a sexual
assault examination. It included a physical examination, pelvic examination, pubic combing, and
nail parings.
Russell conducted a blue-light examination on BL’s skin but found nothing. Sipes agreed
with Russell’s results on this examination.
Meredith attempted to question Russell about the presence of secretions outside the body
in sexual assault examinations, and the State objected. Outside the presence of the jury, Meredith
argued that he should be given latitude to ask about the significance of that finding in relation to
other sexual assault cases. The State argued that the presence or absence or likelihood there would
be secretions on other sexual assault victims invites the jury to speculate what the blue-light
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findings should have been. Because the fact that the blue-light examination did not produce any
findings was now before the jury, the State argued it was up to the parties to argue the significance
of that finding. The trial court disallowed this line of questioning.
Russell also found a “pooling of secretions” consistent with semen in BL’s vagina. 6 RP
(May 9, 1996) at 498. BL also told Sipes that before Meredith sexually assaulted her, she had not
had sexual intercourse since July. Sipes testified that her observations were consistent with “non-
specific findings” for sexual intercourse. 6 RP (May 9, 1996) at 500.
Sipes collected six samples from the pelvic examination and submitted three to the hospital
laboratory and three to the police. She testified that the hospital laboratory report showed the
secretions in BL’s vagina contained semen with nonmotile sperm. She testified that the presence
of semen indicated BL had intercourse within three days of her examination.
Meredith attempted to ask Russell if the purpose of the samples was for deoxyribonucleic
acid (DNA) analysis, and the trial court sustained the State’s objection. Meredith argued that
according to the record provided, swabs were taken for purposes of DNA analysis. The State
argued that DNA analysis is controlled by the police, and whether or not DNA analysis was
conducted on the swabs was outside Russell’s knowledge or control. The trial court did not allow
testimony on this subject.
During the examination, Sipes noticed redness on one of BL’s inner thighs. She also
discovered “a superficial abraded area with [a] superficial laceration in the . . . posterior fornix,
which is the area between the vaginal opening and the anus.” 6 RP (May 9, 1996) at 498. Sipes
testified that both injuries occurred within 24 hours of the examination.
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Sipes also reviewed the hospital’s laboratory report which showed semen in the vaginal
secretion. Sipes testified that semen is generally recovered from the vaginal vault up to three days
following intercourse. She also testified that intercourse could have occurred at any period of time
within the stated three days, but she could not tell, by reasonable medical certainty, as to exactly
when the intercourse occurred.
As with Russell, Meredith asked Sipes whether the swabs were taken for purposes of DNA
testing, to which Sipes replied, “Yes.” 6 RP (May 9, 1996) at 504. The State objected. The court
sustained the objection and instructed the jury to disregard the question and answer.
IV. JURY INSTRUCTIONS AND CLOSE OF TRIAL
The trial court considered the parties’ proposed jury instructions. Meredith’s proposed
instructions did not include a limiting instruction regarding the prior conviction evidence;
however, he objected to the limiting instruction proposed by the State. He argued that the limiting
instruction did not sufficiently explain the purpose of the prior conviction evidence. The trial court
gave the following limiting instruction to the jury:
Evidence that the defendant has previously been convicted of a crime is not
evidence of the defendant’s guilt. Such evidence may be considered by you in
deciding Count II and for no other purpose.
PRP Resp., App. F (Instr. 14).
Meredith made several motions including a renewal of his motion to sever the counts. The
court denied the motions.
The jury convicted Meredith of both charges.
6
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V. SENTENCING
On November 21, 2008, the court held a sentencing hearing. The State submitted a certified
copy of Meredith’s prior convictions and argued that the current convictions were not the same
criminal conduct. Meredith argued that the current convictions should be treated as the same
criminal conduct for purposes of calculating his offender score.
The trial court agreed with the State. It then imposed a 198-month sentence on the rape of
a child conviction and a 60-month sentence on the communication conviction, to be served
concurrently.
VI. POST CONVICTION
Meredith appealed his convictions. State v. Meredith, 165 Wn. App. 704, 707, 259 P.3d
324 (2011) (published in part). He contended that the State violated Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). He also argued that the trial court violated his rights
to confrontation and cross-examination, that insufficient evidence supported his communication
conviction, and that the trial court improperly prohibited him from arguing about the absence of
DNA evidence during closing argument. Meredith, 165 Wn. App. at 707. We affirmed the
convictions, as did the Supreme Court. State v. Meredith, 178 Wn.2d 180, 182, 306 P.3d 942(2013), abrogated by City of Seattle v. Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017); Meredith,
165 Wn. App. at 707. We concluded that overwhelming evidence supported Meredith’s guilt.
Meredith, No. 38600-3-II, slip op. (unpublished portion) at 12, 14.
Meredith filed this petition, and we granted it because the trial court did not give Meredith
all the peremptory strikes afforded to him under the court rules and because he received ineffective
assistance of counsel. In re Pers. Restraint of Meredith, No. 46671-6-II, (Wash. Ct. App. Feb. 14,
2017) (unpublished), http://www.courts.wa.gov/opinions/. The Supreme Court reversed our
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decision and remanded it for us to consider Meredith’s remaining claims. In re Pers. Restraint of
Meredith, 191 Wn.2d 300, 422 P.3d 458 (2018).
ANALYSIS
I. PRP STANDARD OF REVIEW
A petitioner may request relief through a PRP when he or she is under an unlawful restraint.
RAP 16.4(a)-(c). “A personal restraint petitioner must prove either a (1) constitutional error that
results in actual and substantial prejudice or (2) nonconstitutional error that ‘constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.’” In re Pers.
Restraint of Monschke, 160 Wn. App. 479, 488, 251 P.3d 884 (2010) (internal quotation marks
omitted) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004)). The
petitioner must prove the error by a preponderance of the evidence. In re Pers. Restraint of Lord,
152 Wn.2d 182, 188, 94 P.3d 952 (2004). In addition, “[t]he petitioner must support the petition
with facts or evidence and may not rely solely on conclusory allegations.” Monschke, 160 Wn.
App. at 488; see RAP 16.7(a)(2)(i).
In evaluating PRPs, we can
(1) dismiss the petition if the petitioner fails to make a prima facie showing of
constitutional or nonconstitutional error, (2) remand for a full hearing if the
petitioner makes a prima facie showing but the merits of the contentions cannot be
determined solely from the record, or (3) grant the PRP without further hearing if
the petitioner has proved actual prejudice or a miscarriage of justice.
In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 176-77, 248 P.3d 576 (2011).
“In PRPs, we ordinarily will not review issues previously raised and resolved on direct
review.” In re Pers. Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). Raising the
same issue but presenting it in a different form does not justify a second review. In re Pers.
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Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001). A PRP is not a substitute for an
appeal. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 824, 650 P.2d 1103 (1982).
II. CHALLENGE FOR CAUSE
Meredith argues that the trial court violated his right to an impartial jury by denying his
challenge for cause against juror 32 and by failing to excuse the juror sua sponte. We disagree.
A. Standard of Review
A trial court’s denial of a challenge for cause is reviewed for abuse of discretion. State v.
Davis, 175 Wn.2d 287, 312, 290 P.3d 43 (2012), abrogated on other grounds by State v. Gregory,
192 Wn.2d 1, 427 P.3d 621 (2018). Deference is given to the trial court because the trial judge is
in the best position to “‘interpret and evaluate a juror’s answers to determine whether the juror
[will] be fair and impartial.’” State v. Lawler, 194 Wn. App. 275, 282, 374 P.3d 278 (2016)
(internal quotation marks omitted) (quoting Davis, 175 Wn.2d at 312).
Jurors are presumed to follow the instructions of the court. State v. Warren, 165 Wn.2d
17, 29, 195 P.3d 940 (2008). The party challenging the trial court’s decision must show more than
a mere possibility that a juror was prejudiced. State v. Noltie, 116 Wn.2d 831, 840, 809 P.2d 190(1991). “[E]quivocal answers alone do not require a juror to be removed when challenged for
cause, rather, the question is whether a juror with preconceived ideas can set them aside.” Noltie,
116 Wn.2d at 839.
B. The Trial Court Did Not Abuse Its Discretion
Meredith argues that juror 32 had overwhelming bias and that the juror’s promise to
“strive” to follow the court’s instruction was insufficient. PRP Br. in Support at 20. He also argues
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that the State’s attempt to rehabilitate the juror was insufficient. Meredith further argues that the
trial court erred because it did not assess the juror’s state of mind to determine if actual bias existed.
We disagree.
The trial court is in the best position to evaluate whether a juror must be dismissed. Davis,
175 Wn.2d at 312. Our review is limited to juror 32’s transcribed voir dire answers; we cannot
assess the juror’s tone of voice, facial expressions, body language, reactions, or other nonverbal
communications. See Lawler, 194 Wn. App. at 287. The trial court observed and evaluated juror
32 in a way that we cannot.
Meredith has failed to meet his burden for at least two reasons. He has failed to show that
the trial court abused its discretion by failing to excuse juror 32. In addition, the court excused
juror 32 prior to deliberations, and juror 32 did not participate in finding Meredith guilty. Meredith
cannot demonstrate any prejudice.
III. ADMISSION OF PRIOR CONVICTIONS
Meredith argues that the trial court violated his right to a fair trial by improperly admitting
his prior convictions. He argues that the prior convictions had no probative or material value in
proving the communicating charge and that the admission was overwhelmingly prejudicial on the
rape of a child charge. We conclude that the prior convictions were admissible as an element of
the communication charge. However, because the trial court’s limiting instruction told the jury
this evidence could only be used on the communicating charge, the prior convictions had no
prejudicial effect on the rape of a child charge. Jurors are presumed to follow the instructions of
the court. Warren, 165 Wn.2d at 29.
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A. Standard of Review
An evidentiary error, such as erroneous admission of ER 404(b) evidence, is not of
constitutional magnitude. State v. Everybodytalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294(2002); State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997). We review evidentiary
rulings for an abuse of discretion.2 State v. Williams, 137 Wn. App. 736, 743, 154 P.3d 322 (2007).
“A court abuses its discretion when its evidentiary ruling is ‘manifestly unreasonable, or exercised
on untenable grounds, or for untenable reasons.’” Williams, 137 Wn. App. at 743 (internal
quotation marks omitted) (quoting State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004)).
B. Evidence Relevant
A person who communicates with a minor for immoral purposes is guilty of a gross
misdemeanor; however, if the person has previously been convicted of a felony sexual offense, the
person is guilty of a class C felony. RCW 9.68A.090(1)-(2).3 Where, as here, a person is charged
with felony communicating, the State must prove beyond a reasonable doubt that the defendant
has been previously convicted under this same section or of any other felony sex offense. State v.
Bache, 146 Wn. App. 897, 905, 193 P.3d 198 (2008). Prior convictions that elevate a crime from
a gross misdemeanor to a felony are an element that the State must prove beyond a reasonable
doubt. State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d 705 (2008). If a defendant wants to avoid
having the prior offense go before the jury, he or she may stipulate to the predicate offense. Old
2
The fact that the defendant has couched this argument in constitutional terms does not change
the standard of review. State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013); State v. Blair,
3 Wn. App. 2d 343, 349-50, 415 P.3d 1232 (2018).
3
The jury convicted Meredith under this statute. Although there have been amendments to RCW
9.68A.090 since the date of Meredith’s crimes, none is relevant to this case.
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Chief v. United States, 519 U.S. 172, 190-91, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); State v.
Gladden, 116 Wn. App. 561, 565-66, 66 P.3d 1095 (2003).4
The trial court properly admitted the prior sex convictions because they were relevant to
prove an element of the communication charge.5
IV. LIMITING JURY INSTRUCTION
Meredith argues that the trial court prejudiced him by giving an incorrect limiting
instruction relating to his prior convictions. He argues that the instruction did not tell the jury the
limited purpose of the evidence and did not inform them that it could not be used to show Meredith
acted in conformity. We agree the court gave an incorrect instruction but conclude that any error
was harmless.
A court has the duty to correctly instruct a jury once a criminal defendant requests a limiting
instruction. This duty exists even if a defendant does not propose a correct instruction. State v.
Gresham, 173 Wn.2d 405, 424, 269 P.3de 207 (2012).
4
Meredith offered to stipulate to the prior convictions, but he incorrectly argued that the prior
convictions stipulated to should be considered by the court at sentencing, not by the jury as an
element of the crime. See Old Chief, 519 U.S. at 190-91; Gladden, 116 Wn. App. at 565-66.
5
Having concluded that the prior convictions were admissible to prove an element of a charged
crime, we also conclude that the court erred by admitting the evidence under ER 404(b). The court
found that Meredith’s prior convictions were admissible for the purpose of showing absence of
mistake or accident and to prove common scheme, preparation, or plan because of the similarity
between the victims, circumstances, and acts that occurred in the prior and current offenses.
However, the jury only heard about the prior convictions, not the details underlying them. While
the facts underlying the prior convictions may have shown a common scheme, preparation, or plan
as to the rape of a child charge, the fact of conviction alone was insufficient for these purposes.
Because of our resolution, we need not address Meredith’s argument that the admission of the
prior convictions under ER 404(b) violates separation of powers.
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At trial, the court gave the following limiting instruction:
Evidence that the defendant has previously been convicted of a crime is not
evidence of the defendant’s guilt. Such evidence may be considered by you in
deciding Count II and for no other purpose.
PRP Resp., App. F (Instr. 14).
Here, the limiting instruction informed the jury that the prior conviction evidence was
admitted only on the communication charge and could not be used as evidence of Meredith’s guilt.
We previously concluded that the prior conviction evidence could only be used to prove one
element of the communicating charge. But the limiting instruction allowed the jury to consider
the evidence on the communicating charge for any purpose other than guilt.
Nonetheless, giving an incorrect limiting instruction may be harmless. See Gresham, 173
Wn.2d at 425; State v. Mason, 160 Wn.2d 910, 935, 162 P.3d 396 (2007). The error is harmless
“‘unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would
have been materially affected.’” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Had a proper limiting
instruction been given, and had the jury’s consideration of the evidence been expressly limited to
proving an element of the communicating charge, the remaining overwhelming evidence of
Meredith’s guilt persuades us that the outcome of his trial would not have been materially affected.
We are persuaded that the outcome of Meredith’s trial was not materially affected with the
erroneous limiting instruction because overwhelming evidence of Meredith’s guilt existed.
Meredith cannot demonstrate that the outcome of his trial would have been materially affected if
the court had given a correct instruction.
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V. MOTION TO SEVER
Meredith argues that the trial court erred in denying his motion to sever the rape of a child
charge from the communicating charge, thereby violating his right to a fair trial by an impartial
jury. He also argues that admitting the prior convictions was particularly prejudicial to the rape of
a child charge and there is a “recognized danger” that the prejudice would persist even where the
jury is instructed to consider the counts separately. PRP Supp. Br. at 22. We disagree.
A. Standard of Review
We review a motion to sever counts for manifest abuse of discretion. State v. Kalakosky,
121 Wn.2d 525, 537, 852 P.2d 1064 (1993).6
CrR 4.3(a) permits two or more offenses of similar character to be joined for trial. Properly
joined offenses may be severed if “the court determines that severance will promote a fair
determination of the defendant’s guilt or innocence of each offense.” CrR 4.4(b). A defendant
“‘seeking severance ha[s] the burden of demonstrating that a trial involving both counts would be
so manifestly prejudicial as to outweigh the concern for judicial economy.’” Kalakosky, 121
Wn.2d at 537 (quoting State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990)).
B. The Trial Court Did Not Abuse Its Discretion in Denying Meredith’s Motion to
Sever
In assessing whether to sever the counts to avoid prejudice to a defendant, the trial court
considers: “‘(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as to
each count; (3) court instructions to the jury to consider each count separately; and (4) the
admissibility of evidence of the other charges even if not joined for trial.’” State v. Sutherby, 165
6
The fact that the defendant has couched this argument in constitutional terms does not change
the standard of review. See Dye, 178 Wn.2d at 548; Blair, 3 Wn. App. 2d at 343.
14
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Wn.2d 870, 884-85, 204 P.3d 916 (2009) (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d
747 (1994)).
The court considered each of these factors at the motion to sever and denied the motion.
The court weighed the strength of the State’s case on each count and evaluated the potential
prejudice that could exist by not severing.
The court ruled that it would not sever the counts based on the first factor. As to the second
factor, the court found that Meredith did not have inconsistent defenses and no prejudice existed
under this factor. As to the other factors, the court found that evidence of each charge would be
admissible on the other one.
We conclude that the court did not abuse its discretion in denying the severance motion,
and its ruling did not constitute a fundamental defect which inherently resulted in the miscarriage
of justice.
VI. OFFENDER SCORE CALCULATION
Meredith argues that because the court did not count his prior concurrently served
convictions as one offense for purposes of offender score calculation, a fundamental defect and
complete miscarriage of justice occurred. Meredith also argues that the same criminal conduct
analysis is inapplicable to his offender score calculation because that rule came into effect in 1995.
We disagree with Meredith.
We review a sentencing court’s calculation of an offender score de novo. State v. Mehaffey,
125 Wn. App. 595, 599, 105 P.3d 447 (2005). However, same criminal conduct is a factual
determination reviewed for abuse of discretion. In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d
759, 764, 297 P.3d 51 (2013).
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A finding of the same criminal conduct lowers the offender score below the presumptive
score and favors the defendant. Because it favors the defendant, the defendant must establish the
crimes constitute the same criminal conduct. State v. Aldana Graciano, 176 Wn.2d 531, 539, 295
P.3d 219 (2013).
Under the Sentencing Reform Act, chapter 9.94A RCW, sentencing courts apply the
definition of criminal history in effect at the time the offense was committed to calculate the
sentence for that offense. In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 12, 100 P.3d 805(2004). An “incorrect calculation of an offender score constitutes a fundamental defect in
sentencing resulting in a complete miscarriage of justice which requires relief in a personal
restraint proceeding under RAP 16.4.” In re Pers. Restraint of Connick, 144 Wn.2d 442, 465, 28
P.3d 729 (2001).
A sentencing court is required to exercise its discretion to determine whether a defendant’s
prior convictions for which concurrent sentences were imposed should be treated as one offense
or separate offenses in calculating the defendant’s offender score. State v. Reinhart, 77 Wn. App.
454, 457-59, 891 P.2d 735 (1995) (current sentencing court must make an independent
determination whether prior convictions should be considered one or separate offenses); State v.
Wright, 76 Wn. App. 811, 827, 888 P.2d 1214 (1995), superseded by statute on other grounds,
LAWS OF 1995, ch. 316, § 1. The sentencing court is neither bound by earlier determinations of
whether to count a prior offense as one or separate offenses, nor is it required to find that the
offenses constituted same criminal conduct in order to count them as one offense. Mehaffey, 125
Wn. App. at 600-01.
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Former RCW 9.94A.360(6)(a) (Supp. 1995) stated:
In the case of multiple prior convictions, for the purpose of computing the offender
score, count all convictions separately, except:
(i) Prior offenses which were found, under RCW 9.94A.400(1)(a),[7] to
encompass the same criminal conduct, shall be counted as one offense, the offense
that yields the highest offender score. The current sentencing court shall determine
with respect to other prior adult offenses for which sentences were served
concurrently whether those offenses shall be counted as one offense or as separate
offenses using the “same criminal conduct” analysis found in RCW
9.94A.400(1)(a), and if the court finds that they shall be counted as one offense,
then the offense that yields the highest offender score shall be used.
(Emphasis added.)
Meredith had two prior convictions for rape in the third degree and assault in the third
degree with sexual motivation. It is undisputed that the prior convictions did not constitute the
same criminal conduct. The crimes occurred on different days and against different victims.
Meredith now argues that his prior convictions should have been counted as one offense in
calculating his offender score because they were served concurrently. He claims the court failed
to make a proper determination on the record. Meredith does not dispute that his prior convictions
were not the same criminal conduct. Meredith’s argument fails.
VII. PROSECUTORIAL MISCONDUCT
Meredith argues that the State made misstatements during closing argument that amounted
to prosecutorial misconduct, resulting in an unfair trial and requiring reversal. We disagree.
7
Former RCW 9.94A.400(1)(a) (Supp. 1995), pertaining to “same criminal conduct” analysis,
states in relevant part: “‘Same criminal conduct,’ as used in this subsection, means two or more
crimes that require the same criminal intent, are committed at the same time and place, and involve
the same victim.”
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A personal restraint petitioner who raises prosecutorial misconduct has the burden to prove
the misconduct was either a constitutional error resulting in actual and substantial prejudice or a
fundamental defect resulting in a complete miscarriage of justice. In re Pers. Restraint of Lui, 188
Wn.2d 525, 539, 397 P.3d 90 (2017).
When, as here, the petitioner did not object during trial, his prosecutorial misconduct claim
is considered waived unless the misconduct is “‘so flagrant and ill-intentioned that it cause[d] an
enduring and resulting prejudice that could not have been neutralized by a curative instruction.’”
In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 143, 385 P.3d 135 (2016) (quoting State v.
Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). We evaluate whether misconduct is flagrant
and ill-intentioned by focusing “less on whether the prosecutor’s misconduct was flagrant or ill
intentioned and more on whether the resulting prejudice could have been cured.” State v. Emery,
174 Wn.2d 741, 762, 278 P.3d 653 (2012). Prosecutorial misconduct that denies a defendant a
fair trial is flagrant and ill-intentioned. In re Pers. Restraint of Phelps, 190 Wn.2d 155, 165-66,
410 P.3d 1142 (2018).
Put simply, to prevail in his PRP, [a petitioner] must overcome three
hurdles. First, he must show the prosecutor committed misconduct. Second,
because he did not object during trial, [he] must show that misconduct was flagrant
and ill-intentioned and caused him prejudice incurable by a jury instruction. Third,
because he raises this issue in a PRP, [a petitioner] must show the prosecutor’s
flagrant and ill-intentioned misconduct caused him actual and substantial prejudice.
Phelps, 190 Wn.2d at 166.
Meredith argues that the prosecutor misstated the evidence in his closing argument and that
he contradicted Dr. Sipes’s testimony. Meredith also argues that prosecutorial misconduct
occurred when the State expressed a personal opinion by vouching for the credibility of its
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witnesses. Meredith also claims that the State expressed a personal opinion by vouching against
the credibility of Meredith’s witnesses and that the State expressed a personal opinion of
Meredith’s guilt independent of the testimony of the case.
Meredith cannot overcome the first hurdle. We have reviewed the record and the specific
portions of the record Meredith claims support his prosecutorial misconduct arguments. The
prosecutor did not commit misconduct. The prosecutor argued reasonable inferences from the
record.
VIII. INEFFECTIVE ASSISTANCE OF COUNSEL
Meredith claims that he received ineffective assistance of trial counsel.8 The State argues
that Meredith previously raised many of his ineffective assistance claims in his appeal, and even
if we consider the claims, Meredith cannot prove prejudice. We conclude Meredith’s claims fail.
A. Standard of Review
We review claims of ineffective assistance of counsel de novo. Sutherby, 165 Wn.2d at
883. An appellant claiming ineffective assistance of counsel has the burden to establish that (1)
counsel’s performance was deficient and (2) the performance prejudiced the defendant’s case.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Failure
to establish either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S.
at 700. An attorney’s performance is deficient if it falls “below an objective standard of
8
Meredith also claims he received ineffective assistance of appellate counsel who did not raise the
issues of receiving too few peremptory challenges and challenges for cause as to juror 32. Having
disposed of these issues previously, we do not readdress them.
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reasonableness based on consideration of all the circumstances.” State v. McFarland, 127 Wn.2d
322, 334-35, 899 P.2d 1251 (1995). Deficient performance prejudices a defendant if “there is a
reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceedings would have been different.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
Our scrutiny of counsel’s performance is highly deferential; we strongly presume
reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). An appellant faces a
strong presumption that counsel’s representation was effective. Grier, 171 Wn.2d at 33. To rebut
this presumption, a defendant bears the burden of establishing the absence of any legitimate trial
tactic explaining counsel’s performance. Grier, 171 Wn.2d at 33. Failing to conduct research falls
below an object standard of reasonableness where the matter is at the heart of the case. See Kyllo,
166 Wn.2d at 868.
Generally, in a PRP, the petitioner must demonstrate by a preponderance of the evidence
that a constitutional error resulted in actual and substantial prejudice or a nonconstitutional error
resulted in a complete miscarriage of justice. But a petitioner claiming ineffective assistance of
counsel need only satisfy Strickland’s prejudice test; there is no heightened standard. In Re Crace,
174 Wn.2d 835, 847, 280 P.3d 1102 (2012).
A “new” ground for relief is not created merely by supporting a previous ground with
different factual allegations or different legal arguments, or by couching the claim in different
language. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013); In re Pers.
Restraint of Lord, 123 Wn.2d 296, 329, 868 P.2d 835 (1994). For example, a petitioner generally
may not renew a previously determined issue simply by recasting it as an ineffective assistance
claim. Stenson, 142 Wn.2d at 720.
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B. Trial Counsel
Meredith argues that he received ineffective assistance of trial counsel because counsel
failed to exercise a peremptory challenge on a juror, object to the offender score calculation, make
an offer of proof regarding the frequency of blue-light examinations, make an offer of proof
regarding admissibility of evidence regarding DNA testing, perform an adequate pretrial
investigation and cross-examination of Dr. Sipes, and object to the State’s closing arguments.9
1. Challenge For Cause
Meredith argues that he received ineffective assistance of counsel when counsel failed to
peremptorily remove juror 32. We disagree.
Meredith fails to prove prejudice. Near the close of trial but prior to deliberations, the trial
court excused juror 32 for illness. Meredith fails to demonstrate how the failure to exercise a
peremptory against juror 32 prejudiced him. He cannot show that the outcome of his trial would
have been different.
2. Blue-Light Examination – Offer of Proof and Pretrial Investigation
Meredith argues that he received ineffective assistance of counsel because counsel failed
to submit an offer of proof regarding the issue of the frequency of blue-light examinations.
Meredith also argues that counsel was deficient because he did not conduct an investigation on
Russell and the blue-light examination of BL’s clothes. Meredith raised this issue on appeal but
now couches it as an ineffective assistance of counsel claim. Because Meredith raised this claim
in his appeal, we do not consider it.
9
We have previously concluded the court did not err in calculating Meredith’s offender score and
that the prosecutor did not commit misconduct in closing argument. We do not address these
issues again. Trial counsel was not ineffective regarding either of these issues.
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3. DNA Testing – Offer of Proof
Meredith argues that he received ineffective assistance of counsel when counsel failed to
make an offer of proof as to the admissibility of evidence regarding DNA testing. He also argues
that he failed to investigate the lack of DNA testing. Meredith raised this issue on appeal but now
couches it as an ineffective assistance of counsel claim. Because Meredith raised this claim in his
appeal, we do not consider it.
4. Pretrial Investigation and Cross Examination of Dr. Sipes
Meredith argues that he received ineffective assistance of counsel because counsel failed
to adequately prepare for cross-examination of Sipes, and failed to perform an adequate pretrial
investigation and obtain an expert to consult or testify regarding Sipes’s testimony regarding sperm
motility. Meredith raised this issue on appeal but now couches it as an ineffective assistance of
counsel claim. Because Meredith raised this claim in his appeal, we do not consider it.
IX. CUMULATIVE ERROR
Meredith argues that the cumulative effect of trial court’s errors and ineffective assistance
of counsel deprived him of a fair trial. We disagree.
Cumulative error doctrine applies where a combination of trial errors denies the accused
of a fair trial, even where any one of the errors, taken individually, would be harmless. In re
Detention of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012); Lord, 123 Wn.2d at 332. Meredith’s
claim fails.
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X. EVIDENTIARY HEARING
In the alternative, Meredith requests that we transfer this case for a reference hearing
regarding the duration of motile sperm and lack of physical findings. We deny this request.
RAP 16.11(b) provides in relevant part: “If the petition cannot be determined solely on the
record, the Chief Judge will transfer the petition to a superior court for a determination on the
merits or for a reference hearing.” To obtain an evidentiary hearing, the petitioner must
demonstrate that there is competent, admissible evidence to establish facts that would entitle the
petitioner to relief. In Pers. Restraint of Spencer, 152 Wn. App. 698, 707, 218 P.3d 924 (2009).
As previously established by this court in Meredith’s direct appeal, “overwhelming
evidence” exists to support Meredith’s convictions. Meredith, No. 38600-3-II, slip op.
(unpublished portion) at 14.
The evidence included multiple eyewitness testimonies regarding what occurred between Meredith
and BL, and Meredith and AB. Witnesses testified about the presence of sperm inside BL’s vaginal
vault and that its presence indicated that intercourse had taken place within three days.
Meredith argues that the presence of nonmotile sperm casts doubt on whether sexual
intercourse occurred between him and BL. He argues that consulting an expert regarding the
medical report and laboratory results at a reference hearing would allow him to establish medical
facts regarding the nonmotile sperm and its significance in this case. Whether the sperm was
motile or nonmotile is a moot point because only penetration, not ejaculation, is a required element
of rape of a child. The evidence presented at trial supported this finding. Further, we ruled that
even without the laboratory report regarding the nonmotile sperm, the evidence was overwhelming
and supported a guilty verdict. Meredith, No. 38600-3-II, slip op. (unpublished portion) at 12, 14.
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Meredith has not demonstrated that a reference hearing on the physical findings and
nonmotile sperm would more likely than not change the outcome of his trial. We deny Meredith’s
request for a reference hearing.
We deny Meredith’s PRP and affirm his convictions and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Johanson, J.
Maxa, C.J.
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